Jailing Peter for John

SENATOR EDGARDO J. Angara was asking what he thought was a rhetorical question last week as the Supreme Court was about to issue a temporary restraining order stopping for 120 days the implementation of the Cybercrime Prevention Act of 2012 (RA 10175), of which he was the principal sponsor in the Senate.

In so many words, he asked during a TV interview if anyone online can just defame other people without having to answer for it. The answer to that question is of course “No”—anyone who does that should be held accountable. The next question, which Angara should have asked but did not, was how? Angara probably didn’t think it necessary. His question implied that the offender should be charged with libel, as defined and punished in RA 10175. If, for example, someone called a senator a moron, regardless of how aptly the senator fits that description the offender should be punished with a prison term of from six to 12 years.

Imprisonment of six to 12 years is the penalty for homicide. That’s exactly the penalty that former Batangas governor Jose Antonio Leviste, who admitted shooting an aide in 2009, is currently serving at the National Penitentiary. In the United States, 12 years in prison is among the penalties for abetting terrorism, including aiding the commission of terrorist acts that may have resulted in several deaths.

In these isles of fun, under Article 353 of the Revised Penal Code, imputing that someone has committed a crime, has a vice or defect, or, through any act or omission tends to “discredit or cause the dishonor or contempt of a natural or juridical person,” or even “to blacken the memory of one who is dead” have been punished for the last 82 years (the Penal Code was revised in 1930)  with six months to four years’ imprisonment and a fine. Libel was decriminalized in the United States in 1963, but not in the Philippines, despite the legal system’s usually taking its cue from US jurisprudence.

It’s easy enough to see why libel has not been decriminalized. Politicians of various stripes have used the threat of imprisonment for libel to silence and intimidate journalists. The Philippine libel law has been appropriately described by the United Nations Human Rights Committee (UNHRC) as “excessive” and incompatible with the international human rights protocols to which the Philippines is a signatory and which commit the country to the right to free expression.

Instead of heeding the UNHRC recommendation to review the libel law and decriminalize libel,  Congress and the Executive not only included criminal libel in RA 10175; they also raised the penalty to a level equal to the penalty for homicide. Obvious to everyone except to Angara and company and His Excellency Benigno S. Aquino III is that the penalty for libel is not only excessive; it shouldn’t even include imprisonment, which is too much for an offense that can include saying that an official is corrupt, a moral degenerate, incompetent, or a plain crook—all descriptions that, alas, fit much of officialdom. But for an offense far below homicide, and which can have a public purpose, RA 10175 would penalize the offender with the same jail term.

This is not to argue for reduced prison terms for libel. Imprisoning anyone for whatever length of time for libel is in the same category of excess as cutting off a hungry man’s hand for stealing bread: it is eminently unjust.

A reasonable fine, peer condemnation and ostracism, withdrawal of accreditation, suspension, or in the worst of cases even a lifetime ban from the practice journalism, would be penalties commensurate to the offense. But perish the thought that this country’s officials are concerned with justice. What they’re after is immunity from criticism. They pretend to speak for everyone when defending their latest attempt—RA 10175—to silence criticism. But they’re actually speaking for themselves, they being the people who usually sue journalists and government critics for libel, ordinary folk in the first place seldom being the subjects of press and media criticism. Their focus on penalizing supposedly libelous statements/comments in practice amounts to legislating their immunity from citizen monitoring and accountability.

Being criticized to the extent of being called names is part of the risks one takes when one’s in the government of a democracy including this rumored one: it’s part of the territory. The sovereign people of this Republic also have a right to expect that the officials to whom they have delegated their authority are open to public scrutiny and criticism. But as we have seen from the way Congress and the Executive have prevented the passage of a Freedom of Information Act, the dynasties that rule this land won’t have any of it. It’s not only because they prefer to keep the citizenry in the dark about what they’re doing. It’s also part of their assumption that they’re above everyone else and entitled not only to immunity from criticism but also from accountability. When it involves wrong-doing for which officials whether elected or appointed are not punished, the absence of accountability amounts to impunity.

Meanwhile, contrary to what Angara and company allege, the advocates of free expression, among them media advocacy, journalists’ and human rights groups, have never said that free expression has no limits. What they have declared is that it cannot be limited by law without undermining it, except in those instances when free expression turns into hate speech, the fundamental limit to it being the harm it can do to others as succinctly captured, for example, in Justice Oliver Wendell Holmes’ declaration that no one has the right to shout “fire!” in a crowded theater.

For those abuses of  free expression short of hate speech whether online or in the old media (print and broadcast), which admittedly take many forms, but which in the majority of instances are limited to calling people names, failing to attribute information properly, inaccuracy, or plagiarism, the only acceptable form of regulation is self-regulation. Any other form would necessarily infringe on free expression as a human right and as an imperative in democratic discourse.

Self -regulation and its companion, restraint and professional discipline, have admittedly not taken root as ethical norms among many bloggers and other online communicators. But neither have those values been universally and consistently observed in the old media. This is no reason to invite government regulation whether online or in the old media. And yet supporting RA 10175 because of such online abuses as inaccuracy, faulty attribution, or deception—abuses that despite the old media’s having been around far longer than the new, are rampant as well in print and broadcast—invites the same intervention in the latter.

Certainly the use of the Net for child pornography, prostitution, fraud, or identity theft has to be legally sanctioned in the same way that murder, rape, and arson are penalized in Philippine law. Free expression, however, is something else, and a crime only to those wrong doers, otherwise known as politicians, who fear exposure. But leave it to the enemies of free expression to lump these crimes together with the right to monitor and criticize what government officials are doing and to penalize both without distinction. For the offenses of John, RA 10175 and its advocates would punish him as well as Peter.